Why a clean water rule may — or may not — be a big issue in Minnesota’s First Congressional District

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Kirby Hettver, president of the Minnesota Corn Growers Association: “The overwhelming topic right now that is on every producer’s mind is trade.”

As farmers in southern Minnesota grapple with President Donald Trump’s escalating trade war — testing the alliance between the agriculture industry and the GOP that substantially benefited Trump in 2016 — First Congressional District Republican candidate Jim Hagedorn is making sure to showcase the administration’s industry-friendly policies as part of his effort to persuade voters to send him to Congress.

That means highlighting support for mining in northern Minnesota, including the recent decision to end a study of potential impact from copper-nickel mining on the Superior National Forest and the neighboring Boundary Waters Canoe Area Wilderness.

But it also includes touting a Trump administration effort that hits much closer to home in southern Minnesota: the rollback of a 2015 update to the Clean Water Act that expanded protections to small bodies of water feeding larger rivers and lakes — a policy that happened to be one of President Barack Obama’s signature environmental initiatives.

“It’s one of the biggest regulatory issues in agriculture,” Hagedorn said. “I bring it up all the time.”

A fight over water protections

The Obama EPA’s 2015 rule change has a long backstory. It starts more than 40 years ago, when Congress first approved the Clean Water Act. That original bill gave the federal government jurisdiction over the “waters of the United States.”

Ever since, people have not stopped arguing what that actually means, and how broad the government’s authority is under the law. Does it apply only to lakes and rivers and water that feeds directly into them? Or does the law cover even small wetlands, bogs, streams and other isolated or seasonal bits of water?

Supreme Court rulings on the matter have never quite cleared things up, so under Obama, the EPA stepped in to make firm — and far-reaching — guidelines on what could be considered a Water of the United States. John Kolb, a St. Cloud-based attorney who focuses on water and natural resources regulations, says a long study conducted by the EPA used to justify its rule boiled down to: “All water is connected.”

Many farmers took issue with the decision, however. Beyond their general opposition to government expansion, industry groups said the rule change meant they were going to be targeted and penalized for standard agricultural practices. Kirby Hettver, president of the Minnesota Corn Growers Association, said farmers out West were found in violation of Obama-era Clean Water Act “just for tilling their soil.”

He was referring to a case that began in 2012 in which the government ordered a farmer in Northern California, John Duarte, to pay millions in fines and penalties after it said he broke the law by “deep ripping” his field to plant wheat without a permit, and disturbing seasonal wetlands called vernal pools that are notably home to fairy shrimp. (While there are plenty of agricultural exemptions to the Clean Water Act, the government said the field wasn’t subject to them since it hadn’t been plowed in decades. The case was eventually settled.)

While Duarte’s legal saga started before Obama’s update to the Clean Water Act, it became a rallying cry for conservatives worried about government overreach, a charge that found a sympathetic reception within the Trump administration. Earlier this year, the EPA withdrew the rule and is now in the process of writing a more narrow definition of which waters are protected under the Clean Water Act.

Effect in Minnesota

And yet, whether any of this means much for Minnesota remains a topic of debate. One reason is that despite the Trump EPA’s withdrawal of Obama’s Waters of the United States rule, litigation has reinstituted the Obama rule in more than 20 states, including Minnesota.

For another, Minnesota administers much of the Clean Water Act for itself, and it adopted its own stringent definition of protected waters decades ago, said Jean Coleman, an attorney for the Minnesota Pollution Control Agency. In fact, Minnesota’s rule is far broader than the Obama-era water rule, and includes everything from irrigation and drainage systems to all “accumulations of water, surface or underground, natural or artificial, public or private,” within the state, she said.

“The definition of ‘Waters of the State’ is extremely expansive and it captures all waters that would be under the Obama definition of ‘Waters of the U.S.’ or under any other definition of ‘Waters of the U.S.’ because it is so expansive,” Coleman said.

She added: “I don’t think you can think of anything that’s liquid water that falls from the sky that’s not a water of the state.”

The state also has its own tough laws protecting wetlands and more, said Scott Strand, senior attorney for the Environmental Law and Policy Center, a nonprofit environmental advocacy group. Those laws blunt any given update or reversal of the federal Waters of the United States rule. “It will have a more dramatic impact in states that don’t have vigorous state clean water protections,” Strand said of the changes to the Waters of the United States rule.

Yet Kolb, the St. Cloud attorney, said he believes the federal rule still has some impact in Minnesota because there are areas of water permitting where the federal government still has jurisdiction. He also said that the “abundance of isolated wetlands” in southwestern Minnesota and the eastern Dakotas — areas that fall squarely under jurisdiction of Obama’s Waters of the United States rule, he said — mean the rule change impacted the region probably more “than anywhere else in the country.”

A winning issue?

Whatever its effect, Hagedorn has seized upon the Obama clean water rule as campaign fodder. In his most recent television advertisement, released Tuesday, he walks through a farm field promising to help Trump “rip out the regulations.”

Hagedorn has also tried to tie his opponent, DFLer Dan Feehan — who served under Obama as a White House Fellow and later as acting Assistant Secretary of Defense — to the policy.

But Feehan hasn’t exactly been a passionate defender of Obama’s Waters of the United States rule. In an interview with MinnPost, he called the EPA rulemaking a “failure of Washington” and said Congress should write a new rule with input from those being regulated. Many conservative and agriculture groups have also called for congressional intervention.

Feehan also said the agriculture industry is far more concerned with low commodity prices and Trump’s trade disputes, which have led to tariffs on products farmer sell abroad, than with the water rule. China and Mexico have tariffs on pork products in retaliation for U.S. tariffs on material including steel and aluminum. Corn and soybean prices have been affected by trade disputes, too. Those are Minnesota’s two biggest agricultural exports.

“Ask any farmer today in the middle of this trade war how business friendly this administration is now,” Feehan said.

Kevin Paap, president of Minnesota’s Farm Bureau, whose political action committee has endorsed Hagedorn, said the group has been against the Obama-era Clean Water Act change and has appreciated tax cuts and policies championed by the GOP.

That said, “it is trade I hear about each and every day from our members,” Paap added. “I don’t think that we’re going to this time around … have people in agriculture voting just on taxes and regulation,” he said.

Hettver, of the Minnesota Corn Growers Association, echoed Paap’s assessment. “The overwhelming topic right now that is on every producer’s mind is trade,” Hettver said.

And though Hagedorn has defended Trump’s trade policies, saying tariffs were creating “temporary” downsides that would prove beneficial in the long run, Hettver said he wasn’t positive many in the agriculture industry will make the same calculation. He named trade and the so-far unfinished farm bill Congress is mulling as the top two issues on the mind of ag voters as they head to the polls.

“The true test of that question is going to be in November,” he said.

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About the author:

Walker Orenstein covers the environment and workforce issues for MinnPost. He previously covered state government and politics for The (Tacoma) News Tribune. A St. Paul native, he is a graduate of the University of Washington. He can be reached at worenstein@minnpost.com, and you can follow him on Twitter at @walkerorenstein.